R v McPhail

R. v. McPhail

2011 ONCJ 315
Ontario Court of Justice — Justice J.A. Maresca | June 8, 2011

Background

David McPhail was arrested on September 21, 2008, for impaired driving and driving "over 80" in Brampton. After being brought to the 11 Division police station around 4:50 am, he was strip-searched by Officer Chris Allen and Officer Jason McCurley. The officers claimed the search was justified because they found a cell phone in McPhail's shoe during the booking process.

What made this case particularly troubling was how the truth emerged. During the first day of trial in September 2010, Officer McCurley repeatedly denied that any strip search had occurred, claiming he "wouldn't have done a strip search" for an impaired driving charge. Only after persistent questioning did he finally admit the search happened — and his story kept changing between court appearances.

Issues

1. Did the strip search violate McPhail's section 8 Charter rights against unreasonable search and seizure?
2. Should the breathalyzer evidence be excluded as a result of the Charter breach?

The Strip Search Analysis

Justice Maresca applied the Supreme Court's decision in R. v. Golden, which sets strict rules for strip searches. Police need reasonable and probable grounds to believe a strip search is necessary to find weapons or evidence related to the specific offence. Finding a cell phone in someone's shoe doesn't create those grounds — especially when the person has already been pat-searched and wand-searched with no results.

Officer Allen's justification was particularly weak: he claimed he'd read about cell phones that could fire bullets, so finding any cell phone justified stripping McPhail completely naked. The judge found this reasoning "fanciful" and noted that strip searches of impaired driving suspects are extremely rare. Multiple officers testified they'd never conducted strip searches for drinking and driving offences.

The court also found that several officers changed their descriptions of McPhail from "compliant" with "no issues" on the first day of testimony to "cocky," "arrogant," and "belligerent" on the second day — suggesting the search was conducted to humiliate McPhail rather than for legitimate investigative purposes.

The Cover-Up Attempt

What made the Charter breach especially egregious was the attempted cover-up. Officer McCurley initially lied under oath, claiming no strip search occurred. When confronted with the contradictions in his testimony, he admitted his first day of evidence was "wrong." The officers kept no notes about the search beyond a checkbox in the prisoner log, despite knowing it had occurred.

Justice Maresca found this attempted concealment made the police conduct "especially egregious" and weighed heavily in favor of excluding the breathalyzer evidence under section 24(2) of the Charter.

Key Takeaway

Police cannot strip search someone just because they don't like their attitude or found an unrelated item during booking.

When police abuse their power and then lie about it in court, judges will exclude crucial evidence — even in serious cases like impaired driving where society has a strong interest in conviction.